214 F. 3d 1109 - United States of America v. Julio Gonzalez

Julio Gonzalez appeals from his conviction and sentence imposed for conspiracy, cocaine distribution, and money laundering. On appeal, Gonzalez raises four principal issues. He contends that the district court erred by: 1) overruling his challenge for cause to a juror; 2) barring him from presenting evidence going to a defense of duress and refusing to instruct the jury on duress; 3) deciding a material element of the money laundering scheme as a matter of law--namely, whether a federally run sting operation qualifies as a financial institution for purposes of the money laundering counts; and 4) admitting the testimony of an accomplice who testified in exchange for government leniency. While we find the second and third issues troubling, we reverse on the basis of the first.

At the time of the events in question, Julio Gonzalez was 48 years old, with a wife and young child. He operated a neighborhood travel agency in San Francisco's Mission District and worked as a Spanish language radio announcer for the San Francisco Giants. Several character witnesses testified at trial that they never knew Gonzalez to use drugs or to act dishonestly. Gonzalez was accused of conspiracy to distribute cocaine, cocaine distribution, and money laundering in violation of 21 U.S.C.A. S 841, 846, and 18 U.S.C.A. S 1956.

During jury selection, the district court asked the prospective jurors whether they or anyone to whom they were close had any experience with illegal drugs. Among those who responded affirmatively was juror Camacho, who subsequently told the court that her ex-husband, the father of her five year old daughter, had both used and dealt cocaine during their marriage. His involvement in drug trafficking was, she testified, one of the reasons for their divorce approximately four years earlier. Upon questioning by the court, Camacho admitted that the experience was a painful one. At that point, apparently concerned by her answers, the district judge asked her three times whether she could put her personal experience aside and serve impartially. Each time, she responded equivocally:

The Court: Do you think you can put that aside and view Mr. Gonzalez fairly, and view the government's case fairly?

Camacho: I will try to.

The Court: Okay. Well, any--any doubt in your mind about that? I mean, that's- that's pretty -a case of drugs being pretty close and touching your life. But again you're not being asked to rehash those problems, you're not being asked to decide whether drugs are good or bad. You're just going to hear evidence as to whether Mr. Gon zalez did or did not deal with drugs.

Camacho: Right. I'll try.

The Court: Do you think you can do that fairly?

Camacho: I'll try.

Camacho never stated affirmatively that she could put aside her personal experiences, nor did she ever state that she could be fair or impartial.2

At sidebar, Gonzalez's counsel moved to have Camacho excused for cause, noting, in addition to her equivocal responses and the emotionally fraught issue of her exhusband's drug problem and activities, what he termed "negative body language" when he asked the pool as a whole whether anyone would have a problem following the reasonable doubt or entrapment instructions. Although the district court conceded that Camacho's answers were "a bit equivocal," it denied counsel's motion, holding that counsel's observations about her demeanor coupled with her responses were "not enough to excuse her." Originally an alternate, Camacho became a member of the regular panel over the defense's objection after another juror was excused.

Gonzalez was found guilty on all counts by the jury and was sentenced to ten years in prison and five years of supervised release. This appeal followed.

The Sixth Amendment guarantees criminal defendants a verdict by an impartial jury. Dyer v. Calderon , 151 F.3d 970, 973 (9th Cir. 1998). The bias or prejudice of even a single juror is enough to violate that guarantee. Id. Accordingly, "[t]he presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice." Dyer, 151 F.3d at 973, n.2; see also United States v. MartinezSalazar, 120 S.Ct. 774, 782 (Jan. 19, 2000) ("Nor did the district court's ruling result in the seating of any juror who should have been dismissed for cause. As we have recognized, that circumstance would require reversal.").

Challenges for cause are the means by which partial or biased jurors should be eliminated. To disqualify a juror for cause requires a showing of either actual or implied bias-"that is . . . bias in fact or bias conclusively presumed as a matter of law." 47 Am.Jur.2d Jury S 266 (1995). Although "[b]ias can be revealed by a juror's express admission of that fact, . . . more frequently, jurors are reluctant to admit actual bias, and the reality of their biased attitudes must be revealed by circumstantial evidence."3United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977). Because determinations of impartiality may be based in large part upon demeanor, this court typically accords deference to the district court's determinations, and reviews a court's findings regarding actual juror bias "for manifest error" or abuse of discretion. See United States v. Alexander, 48 F.3d 1477, 1484 (9th Cir. 1995). In contrast, implied bias presents a mixed question of law and fact which is reviewable de novo. Dyer, 151 F.3d at 979.

In essence, "[a]ctual bias is `bias in fact'--the existence of a state of mind that leads to an inference that the person will not act with entire impartiality." United States v. Torres, 128 F.3d 38, 43 (2nd Cir. 1997). Accordingly, courts have found actual bias where, based upon personal experience, a potential juror stated he could not be impartial when evaluating a drug dealer's testimony, Torres, 128 F.3d at 44, where a juror in a case involving embezzlement from a labor union emphasized his negative experiences with unions and responded equivocally when asked if he could render a fair and impartial verdict despite those views, United States v. Nell, 526 F.2d 1223, 1228-29 (5th Cir. 1976), and where a juror in a drug distribution case admitted to a conviction for marijuana possession, but stated that he believed it to have been the product of entrapment, United States v. GonzalezBalderas, 11 F.3d 1218, 1222 (5th Cir. 1994).

Although actual bias is the more common ground for excusing jurors for cause, "[i]n extraordinary cases, courts may presume bias based upon the circumstances." Dyer, 151 F.3d at 981; see also Smith v. Phillips, 455 U.S. 209, 222 (1981) (O'Connor, J., concurring). "Unlike the inquiry for actual bias, in which we examine the juror's answers on voir dire for evidence that she was in fact partial,`the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced.' " United States v. Cerrato-Reyes, 176 F.3d 1253, 1260 (10th Cir. 1999) (quoting Torres, 128 F.3d at 45). Accordingly, we have held that prejudice is to be presumed " `where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.' " See Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990) (quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988)). We have also stated that the relevant question "is whether `[the] case present[s] a relationship in which the `potential for substantial emotional involvement, adversely affecting impartiality,' is inherent.' " United States v. Plache, 913 F.2d 1375, 1377 (9th Cir. 1990) (quoting Tinsley, 895 F.2d at 527).

Applying this standard, we have found implied bias in cases where the juror in question has had some personal experience that is similar or identical to the fact pattern at issue in the trial or where the juror is aware of highly prejudicial information about the defendant. See Tinsley, 895 F.2d at 527 -529 (cataloguing cases in which implied bias has been found). For example, in United States v. Eubanks , 591 F.2d 513, 517 (9th Cir. 1979), this court found implied bias where the sons of a juror in a heroin distribution case were themselves heroin users and had served lengthy prison sentences. Similarly, in Dyer, we found implied bias where the brother of a juror in a murder case had been murdered and the juror did not reveal this fact on voir dire because she did not believe it to be relevant.4 Dyer, 151 F.3d at 981-82. We also take note of recent precedent from other Circuits. In Hunley v. Godinez, 975 F.2d 316, 319-20 (7th Cir. 1992), the Seventh Circuit found implied bias in a trial for murder and burglary when the hotel rooms of the deliberating jurors were broken into. The Seventh Circuit based its conclusion on the assumption that the recent burglary would make the jurors incapable of fairly deliberating in a case in which the murder was committed in connection with a burglary. Similarly, in Burton v. Johnson, 948 F.2d 1150, 1159 (10th Cir. 1991), the Tenth Circuit found implied bias in a case in which both the juror and the defendant had been involved in abusive family situations.

Because the implied bias standard is essentially an objective one, a court will, where the objective facts require a determination of such bias, hold that a juror must be recused even where the juror affirmatively asserts (or even believes) that he or she can and will be impartial. See Dyer, 151 F.3d at 982 ("Even if the putative juror swears up and down that it will not affect his judgment, we presume conclusively that he will not leave [it] . . . at the jury room door."). However, a juror's statements that reflect a lack of impartiality may be relevant to a determination of implied bias. A juror's responses that cast doubt upon his ability or willingness to serve impartially will be considered along with the relevant objective factors in determining whether implied bias exists. Dyer, 151 F.3d at 984 (holding that juror's responses and conduct, in combination with her personal history,"add[ed] up to that rare case where we must presume juror bias"); Burton, 948 F.2d at 1159.

On appeal, Gonzalez argues that the district court was obligated to excuse Camacho for cause under either an implied or express bias theory. In response, the government contends that neither implied nor express bias existed. It argues that Camacho should simply be considered as one of the many people who know someone who has used or sold drugs, and not someone who is subject to challenge for cause. We disagree.

In this case, Camacho disclosed the fact that her exhusband, the father of her daughter, dealt and used cocaine--the same drug and conduct at issue here. Moreover, she described her former husband's drug dealing as one of the reasons for her relatively recent divorce and the break-up of her family. She admitted that the experience was painful. Asked three times whether she could put that experience aside and serve fairly and impartially, she never affirmatively stated that she could. Instead, she equivocated each time.5

In Alexander, 48 F.3d at 1483-84, this court held that the trial judge did not abuse his discretion or commit manifest error in denying a challenge for cause to two jurors who initially gave equivocal answers when asked if they could be fair and impartial. In that case, the first juror, who had been held up at gunpoint five years earlier, initially responded somewhat equivocally, saying that he "believed" that he could be impartial, but then responded affirmatively that he could be fair in a case involving facts similar to his case. Id. A closer question for the court was the issue of the second juror, whose husband had been held up at gunpoint four years before; asked twice, she gave somewhat less direct responses: in answer to the question whether her husband's experience would keep her from serving impartially, she said "I don't believe so, no." Alexander, 48 F.3d at 1484. In response to the next question, asking whether she could set aside her feelings and act impartially, she replied "I believe so, yes." Alexander, 48 F.3d at 1484. The key is that in each instance, following her introductory statement of "belief," the second juror ended her answer with an unqualified affirmative or negative" whichever was appropriate for purposes of indicating her ability to serve impartially. Thus, ultimately, the second Alexander juror, like the first, declared that she could be fair and impartial.

Here, however, Camacho was asked three times whether she could be fair, and each time she responded equivocally. Not once did she affirmatively state that she could or would serve fairly or impartially. Equally important, the potential source of bias in this case is also very different than in Alexander. Here, as opposed to a single, isolated criminal incident, Camacho was married to and lived with someone who both bought and sold cocaine on a regular basis, bore that person a child, and then divorced him on account of his involvement with drugs, all within approximately five years of sitting on the jury. The activities of Camacho's husband which led to her divorce and the break-up of her family resembled the fact pattern at issue in the case in which she served--a case in which, if the government's charges were true, the defendant had endangered his family's safety and security in order to traffic in cocaine. Her responses to the repeated questions about her ability to be impartial in light of her own traumatic experiences were consistently equivocal, and she displayed some discomfort during the questioning. In light of these facts, we are compelled to conclude that in this case "the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances." See Tinsley, 895 F.2d at 527.

A juror is considered to be impartial "only if he can lay aside his opinion and render a verdict based on the evidence presented in court . . . ." Patton v. Yount , 467 U.S. 1025, 1037 n. 12 (1984). "Doubts regarding bias must be resolved against the juror." Burton, 948 F.2d at 1158. When a juror is unable to state that she will serve fairly and impartially despite being asked repeatedly for such assurances, we can have no confidence that the juror will "lay aside" her biases or her prejudicial personal experiences and render a fair and impartial verdict. Given Camacho's responses to the court's questions and the similarity between her traumatic familial experience and the defendant's alleged conduct, we conclude that the failure to excuse her for cause under either an express or implied bias theory requires reversal.

Accordingly, we reverse and remand for a new trial.6

REVERSED AND REMANDED.